Raskus v. Allegheny Valley Street Railway Co.

• Decision Date: 24 November 1930
• Docket Number: 147
• Citation: 153 A. 117,302 Pa. 34
• Parties: Raskus v. Allegheny Valley Street Railway Co., Appellant
• Court: Pennsylvania Supreme Court

153 A. 117

302 Pa. 34

Raskus v. Allegheny Valley Street Railway Co., Appellant

No. 147

Supreme Court of Pennsylvania

November 24, 1930

Argued October 7, 1930

Appeal, No. 147, March T., 1930, by defendant, from judgment of C.P. Allegheny Co., July T., 1928, No. 2124, on verdict for plaintiff, in case of Mary Raskus v. Allegheny Valley Street Railway Co. Reversed.

Trespass for death of plaintiff's husband. Before MARSHALL, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $25,000, on which judgment was entered for $22,000. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

For the reason stated, the sixth assignment of error is sustained, and the judgment is reversed with a venire facias de novo.

William A. Challener, with him William A. Challener, Jr., for appellant. -- After the statute of limitations has run, a plaintiff cannot by amendment shift his ground of complaint introduce a new cause of action, cure a fatal defect in the pleadings, or deprive the defendant of any valuable right Mahoney v. Steel Co., 217 Pa. 20; Martin v. Rys., 227 Pa. 18; Mays v. Gas Co., 268 Pa. 325.

As regards the platform on the east side of the track, the charge of the court assumed defendant's negligence throughout, by limiting the defense to contributory negligence on the part of the deceased only.

The charge was erroneous on its measure of damages: Emery v. Phila., 208 Pa. 492; Kelly v. R.R., 274 Pa. 470.

The charge failed to deal properly with the credibility of witnesses; was inadequate, misleading and unduly minimized appellant's defense: Hodder v. Transit Co., 217 Pa. 110; Davies v. Transit Co., 228 Pa. 176; Weiss v. Rys., 242 Pa. 506.

Richard C. Long, with him John E. Laughlin, for appellee. -- Even if the amendment was necessary, it did not introduce a new cause of action: Mays v. Gas Co., 268 Pa. 325; Goldberg v. Friedrich, 279 Pa. 572; Davis v. Land Co., 296 Pa. 449; Schmelzer v. Traction Co., 218 Pa. 29.

The charge was not erroneous on the measure of damages.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Anthony Raskus, aged 35, was killed by a car of the defendant company on the evening of August 28, 1927, and his wife brought suit for damages suffered by herself and children. In her statement of claim, she set forth the intention of her husband to board an interurban trolley at a regular stopping place, but that no service station or platform was provided at that point, and it became necessary for him to stand on the track, where he was struck by the oncoming car. The evidence produced failed to substantiate this claim, but testimony was offered to show that he had crossed the railway track to the east, where a fence, constructed about three feet from the rails, narrowed the passageway, and left such little room for one there located that it was impossible to avoid being hit. When the plaintiff's case was closed, an amendment of the pleadings was asked, so as to conform to the proof of negligence offered. This was allowed, against objection made on the ground that a second cause of action was thus relied on, which was unenforceable because the time of bringing a new suit had passed. On this appeal, it is strongly urged that the permission granted to plaintiff had the effect contended for, but we are not satisfied of the correctness of this position.

This court, in a recent opinion by Mr. Justice KEPHART, in Goldberg v. Friedrich, 279 Pa. 572, 576, laid down the rule applicable in such cases, as follows: "The tests to be applied when the question presented is whether an amended statement presents a new and different cause of action are, would a judgment bar any further action on either, does the same measure of damages support both, is the same defense open in each, and is the same measure of proof required?" Whether the deceased stood on the track or by its side, if the negligence of the motorman caused the injury, defendant was responsible. To the same effect will be found Gail v. Philadelphia, 273 Pa. 275; Schmelzer v. Chester Traction Co., 218 Pa. 29; Terrell v. Pittsburgh Rys. Co., 58 Pa.Super. 371; Geiger v. Madden, 58 Pa.Super. 616; Tomasak v. Courtdale Borough, 98 Pa.Super. 473. It is true that if a new basis of plaintiff's claim is asserted, after the time for bringing a suit for the loss sustained has elapsed, no amendment can be permitted, as is illustrated by Martin v. Pittsburgh Rys. Co., 227 Pa. 18; Mahoney v. Park Steel Co., 217 Pa. 20, and Mays v. United Gas Co., 268 Pa. 325, cases cited by appellant, but an examination will show, in each referred to, a different foundation for recovery was attempted to be set up. There is no merit in the complaint that the change was not asked until plaintiff's case had been presented, for even then it is not too late to make the alteration if it appears the same accident, resulting in the injury, for which suit was brought, has been proven, though differing in details as to the manner of infliction: Davis v. Investment Land Co., 296 Pa. 449. In the present case the application was made before defendant opened its case, and, though objection was entered, no application to continue, because of surprise, was made.

The testimony at the trial was of a very conflicting character that of the plaintiff indicating that a proper place for intending passengers had not been provided, and contact with the car was made inevitable, if not stopped at the usual point, because of the insufficiency of the intervening space on the east between the rail and fence. The witnesses for defendant testified that an unobstructed opening between two posts had been set apart for those desiring to enter the cars, not closed by any connecting rail, in which those wishing to board the car could safely enter and stand. This was the subject of serious dispute, evidence being produced to show the fence was not in this condition at the point in question, but had been altered after the accident by the removal of the rail theretofore in place, and which was absent when the maps and photographs offered were taken. A question for the jury thus arose, and,...